No. 12-536

In the Supreme Court of the United States

SHAUN MCCUTCHEON, ET AL., APPELLANTS

v. FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

ANTHONY HERMAN General Counsel

LISA J. STEVENSON Deputy General Counsel

DAVID KOLKER Associate General Counsel

ADAV NOTI Acting Assistant General

Counsel Federal Election Commission Washington, D.C. 20453

DONALD B. VERRILLI, JR. Solicitor General

Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

(I)

QUESTION PRESENTED

Whether the three-judge district court correctly re-jected appellants’ constitutional challenge to federal statutory limits on the aggregate amounts that an indi-vidual may contribute to federal candidates, political parties, and other political committees, 2 U.S.C. 441a(a)(3).

(III)

TABLE OF CONTENTS

Page

Opinion below .................................................................................. 1 Jurisdiction ...................................................................................... 1 Statement ......................................................................................... 1 Argument ......................................................................................... 7 Conclusion ...................................................................................... 26

TABLE OF AUTHORITIES

Cases:

Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011) ....................................... 5, 10

Buckley v. Valeo: 424 U.S. 1 (1976) ........................................................ passim 519 F.2d 821 (D.C. Cir. 1975) .............................................. 3

California Med. Ass’n v. FEC, 453 U.S. 182 (1981) ....... 5, 14 Davis v. FEC, 554 U.S. 724 (2008) ........................................ 21 FEC v. Colorado Republican Fed. Campaign

Comm., 533 U.S. 431 (2001) ............................. 6, 7, 17, 18, 19 FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449

(2007) ................................................................................ 15, 16 McConnell v. FEC, 540 U.S. 93 (2003), overruled in

part by Citizens United v. FEC, 130 S. Ct. 876 (2010) ............................................................................. passim

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000) ................................................................ 7, 10, 16, 22, 23

Randall v. Sorrell, 548 U.S. 230 (2006) ................ 7, 21, 23, 24

Statutes and regulation:

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 113-114 .............................................. 4

Federal Election Campaign Act of 1971, 2 U.S.C. 431 et seq. ........................................................................................ 1

IV

Statutes and regulation—Continued: Page

2 U.S.C. 431(8)(A)(i) ............................................................. 2 2 U.S.C. 431(8)(B)............................................................... 24 2 U.S.C. 441(a)(1)(A)-(D) ..................................................... 2 2 U.S.C. 441(a)(1)(B)-(D) .................................................. 11 2 U.S.C. 441a(a) .................................................................... 2 2 U.S.C. 441a(a)(3) ............................................................... 2 2 U.S.C. 441a(a)(3)(A) .......................................................... 3 2 U.S.C. 441a(a)(3)(B) .......................................................... 3 2 U.S.C. 441a(a)(4) ............................................................. 14 2 U.S.C. 441a(a)(8) ............................................................. 17 2 U.S.C. 441a(c) .................................................................. 24

11 C.F.R. 100.2 ........................................................................... 2

Miscellaneous:

EMILY’s List, Our Races, http://www.emilyslist. org/what/races (last visited Dec. 28, 2012) ........................ 12

120 Cong. Rec. 27,224 (1974) .................................................... 2 FEC:

Detailed Files About Candidates, Parties and Other Committees, http://www.fec.gov/finance/ disclosure/ftpdet.shtml (last visited Dec. 28, 2012) ...... 20

Disclosure Data Catalog, http://www.fec.gov/data/ DataCatalog.do?cf=downloadable (last visited Dec. 28, 2012) ................................................ 20

PAC Count—1974 to Present, http://www.fec.gov/ press/summaries/2011/2011paccount.shtml (last visited Dec. 28, 2012) ................................................ 12

2011-2012 Election Cycle: Total Disbursements by Entity Type, http://www.fec.gov/law/ 2012TDbyEntity.shtml (last visited Dec. 28, 2012) ...... 24

V

Miscellaneous—Continued: Page

Press Release, NARAL Pro-Choice America, NARAL Pro-Choice America PAC Announces New Endorsements in Key House, Senate Contests To End War on Women (Apr. 3, 2012), http://www. prochoiceamerica.org/elections/elections-press-releases/2012/pr04032012_pac-endorsements.html ......... 12

Price Index Adjustments for Contribution and Expenditure Limits and Lobbyist Bundling Dis-closure Threshold, 76 Fed. Reg. (Feb. 14, 2011):

pp. 8369-8370 ........................................................................ 2 p. 8370 ................................................................................... 3

(1)

In the Supreme Court of the United States

No. 12-536 SHAUN MCCUTCHEON, ET AL., APPELLANTS

v. FEDERAL ELECTION COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MOTION TO DISMISS OR AFFIRM

OPINION BELOW

The opinion of the three-judge district court granting the government’s motion to dismiss (J.S. App. 1a-17a) is not yet published in the Federal Supplement but is available at 2012 WL 4466482.

JURISDICTION

The judgment of the three-judge district court was entered on September 28, 2012. A notice of appeal was filed on October 9, 2012, and the jurisdictional statement was filed on October 26, 2012. The jurisdiction of this Court is invoked under Section 403(a)(3) of the Biparti-san Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 113-114.

STATEMENT

1. The Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. 431 et seq., places two types of limits on the amounts of money that an individual can contrib-

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ute in connection with a federal election. First, FECA imposes base limits on the amounts that an individual can contribute to any one candidate, political party, or non-party political committee. 2 U.S.C. 441a(a); see 2 U.S.C. 431(8)(A)(i) (definition of “contribution”). As in-flation-adjusted for the 2011-2012 election cycle, FECA permitted an individual to contribute up to $2500 per election (counting primary and general elections sepa-rately) to “any candidate and his authorized political committees”; up to $30,800 per year to “the political committees established and maintained by a national po-litical party”; up to $10,000 per year “to a political com-mittee established and maintained by a State committee of a political party”; and up to $5000 per year “to any other political committee.” 2 U.S.C. 441a(a)(1)(A)-(D); see Price Index Adjustments for Contribution and Ex-penditure Limits and Lobbyist Bundling Disclosure Threshold, 76 Fed. Reg. 8368, 8369-8370 (Feb. 14, 2011); see also 11 C.F.R. 100.2 (definition of “election”).

Second, FECA imposes aggregate limits on the total amounts that an individual can contribute to all federal candidates and political committees during a two-year election cycle. 2 U.S.C. 441a(a)(3). The aggregate limits serve to “curtail the influence of excessive political con-tributions by any single person.” 120 Cong. Rec. 27,224 (1974) (statement of Rep. Brademas). The congressional findings accompanying the 1974 enactment of the FECA contribution limits identified instances in which contri-butions to numerous separate entities had been used to funnel campaign funds at the request of a particular candidate. For example, the dairy industry had avoided then-existing reporting requirements by dividing a $2,000,000 contribution to President Nixon among hun-dreds of committees in different States, “which could

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then hold the money for the President’s reelection cam-paign.” Buckley v. Valeo, 519 F.2d 821, 839 n.36 (D.C. Cir. 1975) (per curiam). On another occasion, a presi-dential aide had promised an ambassadorship to a par-ticular individual in return for “a $100,000 contribution to be split between 1970 senatorial candidates designat-ed by the White House and [President] Nixon’s 1972 campaign.” Id. at 840 n.38.

As inflation-adjusted for the 2011-2012 election cycle, FECA’s aggregate limits permitted an individual to make a total of $117,000 in contributions in each two-year election cycle. 2 U.S.C. 441a(a)(3)(B); 76 Fed. Reg. at 8370. An individual could contribute $46,200 to can-didates for federal office. 2 U.S.C. 441a(a)(3)(A); 76 Fed. Reg. at 8370. An individual could contribute an-other $70,800 to non-candidate entities—i.e., national political parties, state political parties, and non-party political committees—so long as no more than $46,200 of that amount went to state political parties or non-party political committees. 2 U.S.C. 441a(a)(3)(B); 76 Fed. Reg. at 8370.

2. Appellants are Shaun McCutcheon and the Repub-lican National Committee (RNC), a national committee of the Republican Party. J.S. App. 2a, 4a-5a. McCutch-eon alleges that he would like to make, and the RNC al-leges that it would like to receive, contributions that are within FECA’s base limits on contributions to particular entities but that would (in combination with other con-tributions made by McCutcheon) exceed FECA’s aggre-gate limits. Id. at 4a-5a.

In particular, McCutcheon alleges that during the 2011-2012 election cycle, he contributed a total of $33,088 to 16 different federal candidates, but wished to contribute $1776 apiece to 12 more candidates. J.S.

4

App. 4a. Those additional contributions would have brought his candidate-contribution total to $54,400, which would have exceeded FECA’s aggregate limit by $8200. Id. at 4a-5a. McCutcheon also alleges that he wished to contribute $25,000 to each of three political committees established and maintained by the Republi-can Party (the RNC, the National Republican Senatorial Committee, and the National Republican Congressional Committee). Id. at 5a. Those contributions would have brought his non-candidate contributions—which includ-ed a $20,000 contribution to the Alabama Republican Party and a $2000 contribution to the Senate Conserva-tives Fund (a non-party political committee)—to $97,000, which would have exceeded FECA’s aggregate limit on contributions to non-candidate entities by $26,200. Ibid. McCutcheon additionally alleges a desire to make a similar pattern of contributions in future elec-tion cycles. Ibid.

3. Appellants filed suit in the United States District Court for the District of Columbia, raising First Amendment challenges to both the $46,200 aggregate limit on contributions to federal candidates and the $70,800 aggregate limit on contributions to non-can-didate entities. J.S. App. 1a, 4a-5a. A three-judge dis-trict court—convened pursuant to Section 403 of the Bi-partisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 113-114—denied appellants’ re-quest for a preliminary injunction and granted the gov-ernment’s motion to dismiss. J.S. App. 1a-17a.

As an initial matter, the district court rejected appel-lants’ argument that the aggregate contribution limits are subject to strict scrutiny. J.S. App. 5a-8a. The dis-trict court recognized that, although this Court has ap-plied strict scrutiny to expenditure limits (i.e., limits on

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amounts spent directly on political speech), it has not done so for contribution limits (i.e., limits on amounts given to support others’ political activity). Id. at 6a (cit-ing, inter alia, Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011)). Ra-ther, this Court has held that contribution limits are “valid as long as they satisfy ‘the lesser demand of being closely drawn to match a sufficiently important inter-est.’  ” Ibid. (quoting McConnell v. FEC, 540 U.S. 93, 136 (2003), overruled in part by Citizens United v. FEC, 130 S. Ct. 876 (2010)). The Court has found that less strin-gent standard to be appropriate because contribution limits “primarily implicate the First Amendment rights of association, not expression, and contributors remain able to vindicate their associational interests in other ways.” Id. at 8a (citing Buckley v. Valeo, 424 U.S. 1, 22, 28 (1976) (per curiam)). The district court applied that less stringent standard here, explaining that FECA’s aggregate limits “do not regulate money injected direct-ly into the nation’s political discourse; the regulated money goes into a pool from which another entity draws to fund its advocacy.” Id. at 9a (citing California Med. Ass’n v. FEC, 453 U.S. 182, 195-196 (1981) (plurality opinion)).

Applying that standard to the aggregate limits at is-sue here, the district court observed that this Court has identified two important governmental interests that justify contribution limits: (1) “preventing corruption or the appearance of corruption”; and (2) “preventing cir-cumvention of contribution limits imposed to further [the government’s] anti-corruption interest.” J.S. App. 9a (citing Buckley, 424 U.S. at 26-27, 38). The district court explained that, because appellants had not chal-lenged the base limits on contributions to individual en-

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tities (e.g., the $2500 per election limit on contributions to candidates), the court could “assume [those limits] are valid expressions of the government’s anticorruption interest.” Id. at 11a. “[T]hat being so,” the court con-tinued, “we cannot ignore the ability of aggregate limits to prevent evasion of the base limits.” Ibid.

The district court explained that, in Buckley v. Valeo, supra, this Court had upheld the aggregate contribution limit in the then-current version of FECA as “no more than a corollary of the basic individual contribution limi-tation that [it found] to be constitutionally valid.” J.S. App. 11a (quoting Buckley, 424 U.S. at 38); see id. at 15a-16a (finding appellants’ overbreadth claim to be foreclosed by Buckley). The district court drew addi-tional support from this Court’s decision in FEC v. Colo-rado Republican Federal Campaign Committee, 533 U.S. 431 (2001) (Colorado II), which upheld FECA’s re-strictions on party expenditures that are coordinated with a candidate. The district court noted, inter alia, that the decision in Colorado II had rested largely on a concern that contributions to one entity (a political par-ty) could be used effectively to circumvent the base lim-its on contributions to another (an individual candidate). J.S. App. 12a (citing Colorado II, 533 U.S. at 459). The district court reasoned that the aggregate contribution limits here served to prevent similar circumvention, which might otherwise occur through artifices such as transfers of contributions between different party com-mittees. Ibid. The district court stated that it would “follow [this] Court’s lead and conceive of the contribu-tion limits as a coherent system” that includes both base limits and aggregate limits, “rather than merely a col-lection of individual limits stacking prophylaxis upon prophylaxis.” Id. at 13a.

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The district court also rejected appellants’ arguments that FECA’s aggregate contribution limits are too low. J.S. App. 13a-15a. The district court cited several deci-sions of this Court for the proposition that “[i]t is not the judicial role to parse legislative judgments about what limits to impose.” Id. at 13a (citing Randall v. Sorrell, 548 U.S. 230, 248 (2006) (plurality opinion); Col-orado II, 533 U.S. at 466; Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 387-388 (2000); Buckley, 424 U.S. at 30). It further explained, inter alia, that “individuals remain able to volunteer, join political associations, and engage in independent expenditures.” Id. at 15a.

ARGUMENT

The three-judge district court’s unanimous decision reflects a straightforward application of this Court’s precedents. This Court upheld FECA’s aggregate con-tribution limit in Buckley v. Valeo, 424 U.S. 1, 38 (1976) (per curiam), and that holding applies with full force to the aggregate limits in the current version of the stat-ute. The appeal should therefore be dismissed for lack of a substantial federal question. In the alternative, the judgment of the district court should be affirmed.

1. In Buckley, this Court upheld the constitutionality of various contribution limitations in the 1974 version of FECA, including a base limit of $1000 on contributions by an individual to a candidate and an aggregate limit of $25,000 on total contributions by an individual in any calendar year. 424 U.S. at 23-38. In doing so, the Court recognized that limits on contributions, unlike limits on expenditures, are not subject to strict scrutiny under the First Amendment. Compare, e.g., id. at 24-25, with id. at 52-54. Instead, the Court concluded that contribu-tion limits are constitutional so long as the government “demonstrates a sufficiently important interest and em-

8

ploys means closely drawn to avoid unnecessary abridg-ment of associational freedoms.” Id. at 25.

The Court explained that, “[b]y contrast with a limi-tation upon expenditures for political expression, a limi-tation upon the amount that any one person or group may contribute to a candidate or political committee en-tails only a marginal restriction upon the contributor’s ability to engage in free communication.” Buckley, 424 U.S. at 20-21. That is because “the transformation of contributions into political debate involves speech by someone other than the contributor.” Id. at 21. While the contribution itself “serves as a general expression of support for the candidate and his views,” it “does not communicate the underlying basis for the support,” and the “quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing.” Ibid. Furthermore, alt-hough contribution limits “impinge on protected associa-tional freedoms” by “limit[ing] one important means of associating with a candidate or committee,” they do not preclude other means of association, and they “leave the contributor free to become a member of any political as-sociation and to assist personally in the association’s ef-forts on behalf of candidates.” Id. at 22.

Applying the reduced degree of scrutiny appropriate to contribution limits, the Court in Buckley identified two “weighty interests * * * sufficient to justify” the then-current $1000 limit on individual contributions to candidates. 424 U.S. at 28-29. First, the limit reduced the opportunity for individuals to use large contribu-tions “to secure a political quid pro quo from current and potential office holders.” Id. at 26-27. Second, and “[o]f almost equal concern,” the limit reduced “the ap-

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pearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions.” Id. at 27.

Turning to the $25,000 aggregate contribution limit, the Court found it to be “no more than a corollary of the basic individual contribution limitation” that the Court had already “found to be constitutionally valid.” Buck-ley, 424 U.S. at 38. The Court accepted that the “overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support.” Ibid. It reasoned, however, that “this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political commit-tees likely to contribute to that candidate, or huge con-tributions to the candidate’s political party.” Ibid.

2. In this case, appellants do not challenge the con-stitutionality of FECA’s base limits on contributions to particular candidates or political committees. J.S. App. 11a & n.4. They argue instead that, even if the base lim-its are constitutional, FECA’s aggregate contribution limits violate the First Amendment. That argument is foreclosed by Buckley’s holding that the aggregate ceil-ing is a permissible legislative effort “to prevent eva-sion” of the individual limits. 424 U.S. at 38. Contrary to appellants’ contentions, nothing in this Court’s post-Buckley case law or in the current version of FECA jus-tifies abandoning that holding.

a. Appellants first contend (J.S. 6-9) that strict scru-tiny should apply to the current aggregate limits. That contention is unfounded. Since Buckley, this Court has

10

continued to adhere to the distinction between expendi-ture limits (which are subject to strict scrutiny) and con-tribution limits (which are not). See, e.g., Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817 (2011) (“[W]e have subjected strictures on campaign-related speech that we have found less oner-ous to a lower level of scrutiny and upheld those restric-tions. For example, after finding that the restriction at issue was ‘closely drawn’ to serve a ‘sufficiently impor-tant interest,’ * * * we have upheld government-imposed limits on contributions to candidates.”) (citing McConnell v. FEC, 540 U.S. 93, 136 (2003), overruled in part by Citizens United v. FEC, 130 S. Ct. 876 (2010); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 387-388 (2000); and Buckley, 424 U.S. at 23-35).

Appellants assert that the biennial contribution limits in the current version of FECA “function in essence as expenditure limits” because they restrict “how many entities an individual may express support for, or asso-ciate with, by making base-level contributions, i.e., how much one may spend on political expression and associa-tion as base-level contributions.” J.S. 8; see J.S. 6. The aggregate limit upheld in Buckley, however, imposed the very same type of restriction about which appellants now complain. The Court there took as a given that the “overall $25,000 ceiling does impose an ultimate re-striction upon the number of candidates and committees with which an individual may associate himself by means of financial support,” but it did not apply strict scrutiny, and it upheld the aggregate limit against constitutional challenge. 424 U.S. at 38. Appellants provide no per-suasive reason for applying a different level of scrutiny now.

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b. Appellants next contend (J.S. 9-14) that post-Buckley amendments to FECA have undermined the anti-circumvention rationale on which the Buckley Court relied in upholding the aggregate limit. Appellants ob-serve (J.S. 12) that, under the version of the law in effect when Buckley was decided, the only base individual con-tribution limit in FECA was a $1000 limit on contribu-tions to candidates. By contrast, the current version of FECA contains base limits on individual contributions to party and non-party political committees as well. See 2 U.S.C. 441(a)(1)(B)-(D). Appellants argue that these additional base limits adequately address any circum-vention concerns that may exist, leaving no anti-circumvention work left for the aggregate contribution limits to do.

That argument is misconceived. Without a ceiling on aggregate contributions, contributors now could still do exactly what the Buckley-era aggregate limit permissi-bly prevented: “contribute massive amounts of money to a particular candidate through the use of unear-marked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate’s political party.” 424 U.S. at 38. To be sure, whereas the aggregate contribution limit was pre-viously the only check on “huge contributions” to a sin-gle political committee or political party, FECA now contains specific limits that more directly address that concern. Contrary to appellants’ contention, however, those more specific limits do not fully obviate the danger that limits on contributions to a particular candidate may be circumvented through contributions to other re-cipients.

A particularly effective circumvention technique, both when Buckley was decided and today, would be to

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donate money to many different entities, each of which could then make its own contribution to the candidate. For two principal reasons, that technique is even easier now than it was when Buckley was decided. First, more than four times as many political committees exist today as in 1976. FEC, PAC Count—1974 to Present, http://www.fec.gov/press/summaries/2011/2011paccount.shtml (last visited Dec. 28, 2012) (listing 1146 political commit-tees as of Dec. 31, 1976 and 5220 as of July 1, 2012). Se-cond, it is much simpler today than in 1976 to determine which candidates are likely to benefit from a contribu-tion to a particular committee, as many committees pro-vide that information on their websites. See, e.g., EMILY’s List, Our Races, http://www.emilyslist.org/what/races (last visited Dec. 28, 2012); Press Release, NARAL Pro-Choice America PAC Announces New En-dorsements in Key House, Senate Contests To End War on Women (Apr. 3, 2012), http://www.prochoiceamerica.org/elections/elections-press-releases/2012/pr04032012_pac-endorsements.html.

Appellants nonetheless argue (J.S. 18-19) that the aggregate limits are superfluous. In their view, Con-gress has “made the judgment” that, if a contribution to a single entity is below the base limit (e.g., if a contribu-tion to a political party is below $30,800), it presents no “cognizable” risk of corruption or circumvention. See ibid. Appellants further contend that, if no single con-tribution within the base limits poses a cognizable dan-ger, Congress can have no legitimate interest in regulat-ing the number of such contributions that an individual makes. See J.S. 19. Both steps of appellants’ reasoning are flawed.

First, Congress’s choice of applicable base limits on contributions to particular candidates or other entities

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does not reflect any implicit determination that contri-butions below those limits pose no risk whatever of cor-ruption or circumvention. Rather, the base limits strike a balance between enabling individuals to legitimately influence elections and reducing the opportunities for actual and apparent corruption. See, e.g., Buckley, 424 U.S. at 26 (observing that “the Act’s primary purpose [is] to limit the actuality and appearance of corruption”) (emphasis added). Second, even if a single contribution below the base limit were per se risk-free, an unchecked proliferation of similar contributions would still pose meaningful dangers. As discussed above, multiple con-tributions create the risk that an individual contributor can circumvent the base limits by channeling his money in such a way that a particular target is likely to receive much more than the base limits would allow (e.g., by contributing to political committees likely to contribute to a particular candidate). That is the precise risk that the Court in Buckley recognized as sufficient to uphold the aggregate contribution limit. Id. at 38.

Even apart from the risk that the base contribution limits may be circumvented by transfers of funds be-tween the various recipients of contributions from a sin-gle donor, FECA’s aggregate limits serve a legitimate anti-corruption purpose. If the aggregate limits did not exist, “an individual might contribute $3.5 million to one party and its affiliated committees in a single election cycle,” yet remain in compliance with all of FECA’s base contribution limits. J.S. App. 3a & n.1. Congress could reasonably conclude that an individual who made contri-butions of that magnitude to a party’s overall electoral efforts might acquire actual or perceived “improper in-fluence” (Buckley, 424 U.S. at 27) over the party’s elect-

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ed officials, even if no single contribution was likely to have that effect.

This Court’s decision in California Medical Associa-tion v. FEC, 453 U.S. 182 (1981), confirms that aggre-gate limits and limits on contributions to political com-mittees can permissibly coexist under the First Amend-ment. In that case, the Court upheld the constitutional-ity of a $5000 limit on contributions by an individual or an unincorporated association to a “multicandidate polit-ical committee” (i.e., a political committee that receives contributions from more than 50 people and contributes to more than five candidates). Id. at 184-185 & n.1 (cit-ing 2 U.S.C. 441a(a)(4)). A plurality of the Court rea-soned that, if a donor could make unlimited contribu-tions to multicandidate political committees, he could circumvent both the $1000 limit on individual contribu-tions to candidates and the $25,000 limit on aggregate contributions to candidates, simply by giving large sums to the multicandidate committee and allowing the com-mittee to make the contributions to the candidates. Id. at 198 (plurality opinion). Justice Blackmun’s concur-rence contained similar reasoning. Id. at 203 (Black-mun, J., concurring in part and concurring in the judg-ment) (agreeing that the limit on contributions to multi-candidate committees could be upheld on anti-circumvention grounds, and analogizing the limit to “the $25,000 limitation on total contributions in a given year that Buckley held to be constitutional”). A majority of the Court thus recognized that aggregate limits can op-erate in tandem with limits on contributions to political committees. Appellants’ contention that the First

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Amendment forces Congress to choose one or the other cannot be squared with that analysis.1

c. Appellants contend (J.S. 16-28) that FECA’s ag-gregate contribution limits are too far attenuated from actual anti-corruption and anti-circumvention concerns to survive First Amendment scrutiny. That is essential-ly a repackaging of their argument that base contribu-tion limits obviate the need for aggregate contribution limits. It fails for much the same reasons, as well as several others.

First, appellants’ reliance (J.S. 17) on isolated lan-guage from the controlling opinion in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (WRTL), is mis-placed. In concluding that BCRA’s restrictions on cor-porate “electioneering communications” were unconsti-tutional as applied to the political advertisements at is-sue in that case, see id. at 455-457, 460, 481, the control-ling opinion stated that “a prophylaxis-upon-prophylaxis approach to regulating expression is not consistent with strict scrutiny,” id. at 479. That statement has no bear-ing on this case. Unlike the restrictions on independent advocacy that were at issue in WRTL, the contribution limits at issue here do not “regulat[e] expression” and are not subject to “strict scrutiny.” Ibid. Indeed, the controlling opinion in WRTL relied on the established

1 Appellants suggest (J.S. 24 n.9) that aggregate limits on individu-al contributions are “underinclusive” because multicandidate political committees do not have similar aggregate limits. That reasoning is faulty. Imposing similar aggregate limits on multicandidate commit-tees would undercut the purpose of such committees, which is to pro-vide a mechanism for multiple individuals to pool their money to sup-port multiple candidates. Congress would have little reason to enable the creation of an entity to take in, say, $255,000 per year ($5000 from each of 51 persons) if that entity were then limited to contrib-uting a total of $46,200 biennially.

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distinction between contributions and independent ex-penditures, observing that “[t]o equate WRTL’s ads with contributions is to ignore their value as political speech.” Ibid.

Second, FECA’s aggregate limits are not properly characterized as a “prophylaxis-upon-prophylaxis.” The premise of that argument is that contribution limits are themselves simply a prophylactic measure against brib-ery-like quid pro quo arrangements with public officials. See J.S. 20. The Court in Buckley observed, however, that, because bribery laws reach “only the most blatant and specific attempts” to corrupt public officials with money, those laws do not fully vindicate the govern-ment’s anti-corruption interests. 424 U.S. at 28; see McConnell, 540 U.S. at 143 (noting that the Court in Buckley “expressly rejected the argument that anti-bribery laws provided a less restrictive alternative to FECA’s contribution limits”). In particular, the Court recognized that contribution limits promote an interest, “[o]f almost equal concern as the danger of actual quid pro quo arrangements,” in reducing “the impact of the appearance of corruption stemming from public aware-ness of the opportunities for abuse inherent in a regime of large individual financial contributions.” Buckley, 424 U.S. at 27; see Shrink Mo. Gov’t PAC, 528 U.S. at 390 (“The public interest in countering [the perception of corruption] was * * * the entire answer to the overbreadth claim raised in the Buckley case.”); see also McConnell, 540 U.S. at 143-144.

Because this Court’s decisions “have made clear that the prevention of corruption or its appearance consti-tutes a sufficiently important interest to justify political contribution limits,” McConnell, 540 U.S. at 143, such limits are not themselves prophylactic. See id. at 143-

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144. This Court’s precedents additionally recognize that the government’s interests in combating corruption and its appearance “have been sufficient to justify not only contribution limits themselves, but laws preventing the circumvention of such limits.” Id. at 144; see, e.g., Colo-rado II, 533 U.S. 431, 456 (2001) (“[A]ll Members of the Court agree that circumvention is a valid theory of cor-ruption.”). As the Court in Buckley put it, aggregate contribution limits are simply a “corollary” of base con-tribution limits. 424 U.S. at 38.2

Third, appellants are mistaken in contending (J.S. 20-23, 27-28) that the government’s anti-corruption and an-ti-circumvention interests are adequately protected by FECA’s “earmarking” provision, 2 U.S.C. 441a(a)(8). That provision counts contributions to one entity (e.g., a political committee) earmarked for transfer to a second entity (e.g., a candidate) as contributions to that second entity for purposes of a person’s base contribution limits (e.g., the $2500 limit on candidate contributions). Ibid. The Court in Buckley recognized, however, that aggre-gate limits serve the permissible interest of preventing

2 Appellants assert (J.S. 15) that this Court’s decision in Citizens

United v. FEC, supra, called the constitutionality of contribution lim-its into question by restricting the scope of the government’s anti-corruption interest to direct quid pro quo exchanges. Appellants’ re-liance on Citizens United is misplaced. That case involved limitations on independent expenditures, and the Court expressly declined to address the constitutionality of limitations on contributions. See, e.g., 130 S. Ct. at 909 (“Citizens United has not made direct contributions to candidates, and it has not suggested that the Court should recon-sider whether contribution limits should be subjected to rigorous First Amendment scrutiny.”); ibid. (observing that “contribution lim-its * * * have been an accepted means to prevent quid pro quo cor-ruption”).

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circumvention “through the use of unearmarked contri-butions.” 424 U.S. at 38 (emphasis added). Appellants’ argument is also foreclosed by this Court’s decision in Colorado II, which rejected the contention that the ear-marking provision constitutes “the outer limit of ac-ceptable tailoring” in support of the government’s anti-corruption and anti-circumvention interests. 533 U.S. at 462; see J.S. App. 13a. The Court in Colorado II ex-plained that such a contention “ignores the practical dif-ficulty of identifying and directly combating circumven-tion under actual political conditions,” which can include various informal ways for political-party contributors to indicate how they want their money spent, and which make circumvention “very hard to trace.” 533 U.S. at 462; see also id. at 459 (describing “tally system,” through which political parties helped channel funds from contributors to candidates while avoiding formal earmarking).

Fourth, appellants are wrong in asserting (J.S. 24, 26) that aggregate contribution limits constitute an im-permissible attempt to “level the playing field” by equal-izing the amount of speech on different sides of a politi-cal campaign. The Court in Buckley recognized that contribution limits, unlike expenditure limits, are not speech-equalization measures. 424 U.S. at 25-26 & n.26. “Contribution limitations alone,” the Court explained, “would not reduce the greater potential voice of affluent persons and well-financed groups, who would remain free to spend unlimited sums directly to promote candi-dates and policies they favor in an effort to persuade voters.” Id. at 26 n.26.

d. Appellants appear to contend (J.S. 15-17, 32-37) that the structure of FECA’s current aggregate limits (which are broken into separate categories for contribu-

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tions to candidates and contributions to non-candidate entities) materially differs from the structure of the ag-gregate limit considered in Buckley (which was not bro-ken out in that fashion). That difference provides no ba-sis for avoiding the binding force of Buckley’s holding that an aggregate limit is constitutional. As the Court recognized in Buckley, the undifferentiated $25,000 limit had the purpose and effect of limiting both total contri-butions to parties and total contributions to candidates. 424 U.S. at 38. The minor structural change of specify-ing two separate aggregate limits, rather than a single aggregate limit, cannot render the current statutory scheme unconstitutional.

In any event, appellants’ objections to the two dis-tinct aggregate limits fail on their own terms. Notwith-standing appellants’ reliance (J.S. 15-16) on a plurality opinion at an earlier stage of the same case, this Court’s decision in Colorado II squarely rejected the proposition that contributions to political parties have no potential for corruption or circumvention. The Court recognized that, “whether they like it or not, [parties] act as agents for spending on behalf of those who seek to produce ob-ligated officeholders.” 533 U.S. at 452. The record in Colorado II showed that “substantial donations turn the parties into matchmakers whose special meetings and receptions give the donors the chance to get their points across to the candidates.” Id. at 461. Moreover, as the Court observed in a later case, “there is no meaningful separation between the national party committees and the public officials who control them” because the “na-tional committees of the two major parties are both run by, and largely composed of, federal officeholders and candidates.” McConnell, 540 U.S. at 155 (internal quo-tation marks and brackets omitted).

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As for the aggregate limits on contributions to candi-dates, appellants are also wrong in suggesting (J.S. 33-35) that candidates cannot serve as conduits for circum-venting the individual contribution limits. Just as a con-tributor can give $5000 each to a number of political committees that in turn give to one candidate, the con-tributor can give $5000 each to a number of candidates who in turn give to one candidate (or to the party, which can make coordinated or independent expenditures in support of that candidate). Cf. Colorado II, 533 U.S. at 459-460 (describing political party’s system of “informal bookkeeping * * * to connect donors to candidates through the accommodation of a party”). Appellants do not appear to dispute that such transfers take place, and FEC data show that candidates in “safe” districts regu-larly contribute campaign funds to candidates in their party who face more difficult elections. See generally FEC, Detailed Files About Candidates, Parties, and Other Committees, http://www.fec.gov/finance/disclosure/ftpdet.shtml (last visited Dec. 28, 2012); FEC, Disclosure Data Catalog, http://www.fec.gov/data/DataCatalog.do?cf=downloadable (last visited Dec. 28, 2012). And, contrary to appellants’ speculation (J.S. 35) that the candidates themselves are likely to take sole credit for such contributions, evidence has shown that, even in contexts where contributions are not made di-rectly to federal candidates, “federal officeholders [have been] well aware of the identities of the donors.” McConnell, 540 U.S. at 147.

e. Finally, it is irrelevant that the Court in Buckley addressed only a facial constitutional challenge to FECA’s aggregate contribution limit, while appellants describe their own suit as raising as-applied and over-breadth challenges. See, e.g., J.S. 10, 27-28. A plaintiff’s

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characterization of his own challenge is not controlling, Citizens United, 130 S. Ct. at 893, and appellants do not meaningfully differentiate their claims from those re-jected in Buckley. See, e.g., J.S. 28-29 (arguing that ag-gregate limits on candidate contributions are substan-tially overbroad for the same reason that they are al-leged to be facially unconstitutional). In particular, ap-pellants identify no unusual feature of their own circum-stances that would render the aggregate limits invalid as applied to them if the limits are generally constitu-tional.

3. As an alternative to their primary argument, which challenges the existence of any aggregate contri-bution limits at all, appellants contend (J.S. 29-32, 34-37) that FECA’s current aggregate limits violate the First Amendment because the amount of contributions they allow is too low. That contention fails under well-settled law and presents no substantial question for this Court to review.

a. As the district court recognized (J.S. App. 13a), this Court has generally declined to second-guess legis-lative judgments about the exact dollar figure of contri-bution limits. The Court has “ordinarily * * * de-ferred to the legislature’s determination of such mat-ters,” recognizing that a “legislature is better equipped to make such empirical judgments” based on legislators’ “particular expertise in matters related to the costs and nature of running for office.” Randall v. Sorrell, 548 U.S. 230, 248 (2006) (plurality opinion) (internal quota-tion marks and citation omitted); see Davis v. FEC, 554 U.S. 724, 737 (2008) (“When contribution limits are chal-lenged as too restrictive, we have extended a measure of deference to the judgment of the legislative body that enacted the law.”); Buckley, 424 U.S. at 30 (“[A] court

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has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000.”).

Consistent with this deferential standard of review, the level of a contribution limit violates the First Amendment only if it is “so low as to ‘prevent candidates and political committees from amassing the resources necessary for effective advocacy.’ ” McConnell, 540 U.S. at 135 (quoting Buckley, 424 U.S. at 21) (brackets omit-ted); see Buckley, 424 U.S. at 30 (“[D]istinctions in de-gree become significant only when they can be said to amount to differences in kind.”). The Court “ask[s], in other words, whether the contribution limitation [is] so radical in effect as to render political association ineffec-tive, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless.” Shrink Mo. Gov’t PAC, 528 U.S. at 397. “Such being the test, the issue * * * cannot be truncated to a narrow question about the power of the dollar, but must go to the power to mount a campaign with all the dollars likely to be forthcoming.” Ibid.

b. Appellants offer two arguments to support their contention that FECA’s current aggregate limits are unconstitutionally low. First, appellants assert (J.S. 34) that, when inflation is taken into account, the current aggregate limits are in certain respects more restrictive than the $25,000 aggregate limit upheld in Buckley. Appellants acknowledge, however, that $25,000 in 1974 is equivalent to $116,676 today, which is slightly less than the current $117,000 combined aggregate limit on contributions to candidates and committees. See ibid. In any event, this Court has previously rejected an infla-tion-based argument materially indistinguishable from appellants’ current challenge. See Shrink Mo. Gov’t PAC, 528 U.S. at 396-397. The Court explained in that

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case that reading Buckley to “set a minimum constitu-tional threshold for contribution limits” reflects “a fun-damental misunderstanding of what [Buckley] held.” Id. at 396. “[T]he dictates of the First Amendment,” the Court explained, “are not mere functions of the Con-sumer Price Index.” Id. at 397.

Second, appellants seek to compare (J.S. 29-31, 36-37) the aggregate contribution limits at issue here to the state contribution limits that were struck down in Ran-dall v. Sorrell, supra, the only case in which this Court has found a contribution limit to be unconstitutionally low. See 548 U.S. at 236-237. The state limits at issue in Randall restricted individual contributions to a candi-date to between $200 and $400 (depending on the office) in a two-year period; they were not indexed to inflation; they applied to contributions made by political commit-tees (including political parties) as well as those made by individuals; and they counted the value of certain self-paid expenses by campaign volunteers (such as travel expenses) as contributions. See id. at 237-239, 259 (plu-rality opinion). The plurality found the limits unconsti-tutional “based not merely on the low dollar amounts of the limits themselves, but also on the statute’s effect on political parties and on volunteer activity in Vermont elections.” Id. at 253. “Taken together,” the Court con-cluded, “[the state law’s] substantial restrictions on the ability of candidates to raise the funds necessary to run a competitive election, on the ability of political parties to help their candidates get elected, and on the ability of individual citizens to volunteer their time to campaigns show that the Act is not closely drawn to meet its objec-tives.” Ibid.

The FECA limits at issue here differ in key respects from the limits at issue in Randall. The FECA limits

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permit substantially higher contributions, see pp. 1-3, supra; they generally are indexed for inflation, see 2 U.S.C. 441a(c); they allow political parties to contribute amounts significantly greater than the individual contri-bution limit, see Randall, 548 U.S. at 258 (plurality opin-ion); and they do not count many volunteer activities as contributions, see 2 U.S.C. 431(8)(B). Appellants do not and could not plausibly allege that FECA’s aggregate limits substantially restrict the ability of any federal candidate to “run a competitive election” or the ability of a national political party “to help [its] candidates get elected.” Randall, 548 U.S. at 253 (plurality opinion); see, e.g., FEC, 2011-2012 Election Cycle: Total Dis-bursements by Entity Type, http://www.fec.gov/law/2012TDbyEntity.shtml (last visited Dec. 28, 2012) (re-porting that federal candidates spent more than $3 bil-lion, and parties more than $2 billion, in the 2011-2012 election cycle). Appellants’ argument instead is simply that the aggregate amount an individual contributor can give, if amortized across all federal candidates of a par-ticular party, results in a somewhat smaller per-candidate contribution than the individual limits found unconstitutional in Randall. J.S. 30-31. That argument substantially oversimplifies Randall, and it overlooks the fact that the constitutionality of a contribution limit is analyzed from the perspective of the recipient, not the contributor. See, e.g., McConnell, 540 U.S. at 135 (“[W]e have said that contribution limits impose serious burdens on free speech only if they are so low as to ‘pre-vent candidates and political committees from amassing the resources necessary for effective advocacy.’  ”) (quot-ing Buckley, 424 U.S. at 21) (brackets omitted).

Appellants are also wrong in asserting that the ag-gregate limits in FECA impermissibly constrict a con-

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tributor’s First Amendment rights. Appellant McCut-cheon or any other contributor can engage in the “sym-bolic act of contributing,” Buckley, 424 U.S. at 21, to every candidate in every federal election. Individuals are limited only in the amounts they can give to those candidates: the more candidates to whom they contrib-ute, the smaller their average contributions must be. But that is not a substantial First Amendment burden, for “[t]he quantity of communication by the contributor does not increase perceptibly with the size of his contri-bution.” Ibid.

As previously noted, the Court in Buckley did not dispute that the $25,000 limit at issue there “impose[d] an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support.” 424 U.S. at 38. Notwithstanding that “modest restraint,” it upheld the aggregate limit against substantially the same constitu-tional challenge that appellants assert in this case. Ibid. That holding remains good law, and it required the dis-missal of appellants’ complaint.

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CONCLUSION

The appeal should be dismissed for want of a sub-stantial federal question. In the alternative, the judg-ment of the district court should be affirmed.

Respectfully submitted.

ANTHONY HERMAN

General Counsel LISA J. STEVENSON

Deputy General Counsel DAVID KOLKER

Associate General Counsel ADAV NOTI

Acting Assistant General Counsel

Federal Election Commission

DONALD B. VERRILLI, JR. Solicitor General

JANUARY 2013